A Real Nuisance to Landowners
26 October 2010
The case of Lambert v Barratt Homes Ltd and Rochdale Metropolitan Borough Council has established that a landowner owes a duty of care to his neighbour to prevent a nuisance, even if he did not create that nuisance in the first place.
In this particular case, the developer Barratt Homes Limited, purchased the lower section of playing fields owned by the local authority for the purposes of residential development. The local authority retained the higher section of playing fields. Significant rainwater from the playing fields drained through an open watercourse and culvert that ran between the playing fields and the properties. In the course of the development Barratt Homes filled in the watercourse and culvert and as a result rainwater ended up flowing from the retained playing fields still owned by the local authority into the residential property.
As well as finding Barratt Homes liable in negligence and nuisance for filling in the watercourse and culvert, the High Court also held that the local authority was under a duty of care to alleviate the nuisance arising from the rainwater falling on the playing fields which was flowing into the properties and it had breached that duty of care by failing to take any remedial action. The local authority was aware of the problem and was in a position logistically and financially to take the necessary steps to solve it. It was this second part of the High Court judgement that ended up in the Court of Appeal.
The Court of Appeal judgement contains a helpful analysis of the case law surrounding the extent of the duty of care which landowners owe to their neighbours to abate a nuisance which they have not created. The Court of Appeal were satisfied that the local authority did owe a duty of care, which included allowing others to have access to the land, co-operating with any relief works and possibly even carrying out some of the works to its own land. This duty does not necessarily extend to paying for the entire remediation scheme itself. Unhelpfully, the Court of Appeal refused to define the exact scope of the duty of care saying that it would depend on the facts in each case.
So what can we glean from this case, aside form the fact that a duty of care is owned? It is clear that the financial means of the defendant is one of the considerations taken into account when deciding the extent of the duties. Indeed, the Court of Appeal acknowledged that local authority might be expected to have access to funds far in excess of those available to individuals. This raises the spectre of "deep pocket" responsibilities.
Secondly, the Court of Appeal acknowledged that whilst a nuisance is continuing the duty of care may vary according to the circumstances. They acknowledged that once the High Court had determined the Barratt Homes was liable for the cost of the relief works it was not fair, just or reasonable to impose on the local authority a duty to meet ongoing costs. This is an interesting conclusion since if you follow the logic, it indicates that had Barratt Homes not been found liable, the scope of the local authority's duty would have increased to pay a contribution to the costs of the work.